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Desecration of unmarked graves is not prima facie negligence for desecration of marked graves

General Pipeline Construction, Inc. v. Hairston
S.E.2d___ (W. Va. 2014) (“Hairston II”)
by Gregory S. Emrick, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.courtswv.gov/supreme-court/docs/fall2014/13-0933and13-0934.pdf

In 2004, Equitable Production Company, (“Equitable”) an oil and natural gas prospector, retained the services of General Pipeline Construction, Inc. (“GP”) to construct a pipeline across a land tract of a former coal mining town known as Crystal Block Hollow, WV. Within that tract of land is Crystal Block Cemetery. While preparing the entrance and egress for the pipeline construction, GP’s bulldozer operator bulldozed a road through the cemetery, despite being informed by residents that the cemetery was in his path and contained the graves of the African American coal mine workers. As the operator created the road access, he pushed aside, uprooted, and damaged the headstones and markers of numerous graves. While other GP employees attempted to repair the graves, Equitable representatives did not visit the site for months after learning of the operator’s actions. When the descendants of seven (7) of the grave occupants learned of the desecration, they filed suit against GP and Equitable in West Virginia.

In 2009, after the close of discovery, the circuit court certified a question to the Supreme Court of West Virginia on what elements were required to prove a cause of action for the desecration of a grave. See Hairston v. General Pipeline, Inc., 226 W.Va. 663, 704 S.E.2d 663 (2010)(“Hairston I”). The Supreme Court issued guidance on that issue, but also advised that the West Virginia legislature had preempted common law in limited circumstances, namely where there were “unmarked grave(s) … of historical significance” by codifying W.Va. Code § 29-1-8a (1993).

The matter then went to trial, during which the Plaintiff’s requested that, in addition to a jury instruction on the common law cause of action, an instruction be given that if Defendants were in violation of W.Va. Code § 29-1-8a, it was prima facie evidence of negligence. The circuit court granted the request and permitted Plaintiffs to present expert testimony as to the legal meaning and application of the statute. The Court also permitted the Plaintiffs to argue to the jury that the Defendants had spoliated, or illegally destroyed, evidence by attempting to repair the damage at the cemetery. The jury found in Plaintiffs’ favor and against GP and Equitable, including compensatory damages against both Defendants and punitive damages against Equitable. The Court denied the Defendants’ motion for a new trial, and the Defendants appealed.

The West Virginia Supreme Court addressed three matters in the appeal: 1) whether W.Va. Code § 29-1-8a was applicable in this matter; 2) whether it was proper to permit expert testimony on the meaning of the statute; and 3) whether the arguments on spoliation were proper. The Plaintiffs argued that because there were unmarked graves that were also desecrated, along with their ancestors’ graves, the statute was properly considered by the jury. The Court reviewed the language of the statute and held that it did not apply to the Plaintiffs’ marked graves, and further, there was no private cause of action created by the statute. The right to enforce the statute, through civil or criminal prosecution, lay solely with the Director of the Historic Preservation Section. In coming to this conclusion, the Court noted that in determining if a statute created a private cause of action, a four factor test must be applied.

(1) the plaintiff must be a member of the class for whose benefit the statute was enacted;

(2) consideration must be given to legislative intent, express or implied, to determine whether a private cause of action was intended;

(3) an analysis must be made of whether a private cause of action is consistent with the underlying purposes of the legislative scheme; and

(4) such private cause of action must not intrude into an area delegated exclusively to the federal government.

Hairston II, at ___, citing Hurley v. Allied Chemical Corporation, 164 W.Va. 268, 262 S.E.2d 757 (1980)

In this matter, the Court held that W.Va. Code § 29-1-8a was not intended to protect Plaintiffs, but the unmarked graves, and further, the legislative intent did not create a private cause of action. As such, instructing the jury on W.Va. Code § 29-1-8a was error, and the Court could not say it was harmless.

The Court held that Plaintiffs’ use of an expert archaeologist and land surveyor to provide expert testimony on the legal meaning of the statute and whether Defendants were in violation of the statute was “clearly wrong.” The interpretation and application of statutory language was the sole province of the judge.

Finally, the Court addressed the spoliation of evidence. The Court first established the standard to be applied:

Before a trial court may give an adverse inference jury instruction or impose other sanctions against a party for spoliation of evidence, the following factors must be considered: (1) the party’s degree of control, ownership, possession or authority over the destroyed evidence; (2) the amount of prejudice suffered by the opposing party as a result of the missing or destroyed evidence and whether such prejudice was substantial; (3) the reasonableness of anticipating that the evidence would be needed for litigation; and (4) if the party controlled, owned, possessed or had authority over the evidence, the party’s degree of fault in causing the destruction of the evidence. The party requesting the adverse inference jury instruction based upon spoliation of evidence has the burden of proof on each element of the four-factor spoliation test. If, however, the trial court finds that the party charged with spoliation of evidence did not control, own, possess, or have authority over the destroyed evidence, the requisite analysis ends, and no adverse inference instruction may be given or other sanction imposed.

Hairston II, at ___, citing Tracy v. Cottrell ex rel. Cottrell, 206 W.Va. 363, 524 S.E.2d 879 (1999). The Court acknowledged that the record did not demonstrate that the spoliation instruction was in error, but noted that it was error for the Court to cede the determination of the ffffffapplication of the instruction to the jury. Instead of performing an in camera review of Plaintiffs’ evidence to determine if a spoliation instruction was proper, the Court had simply permitted the jury to conduct the analysis. The Court held this was improper, but did not address if it was harmless as it was already reversing judgment based on the errant statute jury instruction.

The Court reversed the judgments and remanded the matter to the circuit court for a new trial.